Maria Scotland comments for Lexis Nexis on the Supreme Court ruling on no term time holidays.

The Supreme Court has unanimously upheld a ban on parents taking their children out of school for family holidays during term time. The appeal was brought by the Isle of Wight Council against Mr Platt who took his daughter on holiday against the request of her school, causing her to miss seven days of term time. The court determined that the meaning of ‘regularly’ referred to in section 444(1) of the Education Act 1996 (EA 1996)—which provides for parents to be prosecuted if their child ‘fails to attend regularly’, means they must attend in accordance with the rules prescribed the school. Legal experts believe the decision will lead to more prosecutions, given that there will be almost no scope for arguments about whether a child had attended regularly.

Mr Platt was originally issued a £60 penalty notice when his daughter returned to school. He refused to pay and was prosecuted in the Isle of Wight Magistrates’ Court.

However, magistrates ruled that Mr Platt had no case to answer, finding that his daughter had attended school ‘regularly’ because, even after the holiday, she was present 90.3% of the time up to that point in the academic year.

Isle of Wight Council appealed to the Divisional Court, which upheld the magistrates’ finding, and again to the Supreme Court who heard the case in January 2017.

Judgment

The issue in the Supreme Court appeal was the meaning of ‘regularly’, with three possible meanings considered in relation to the Education Act 1996 provision:

evenly spaced

sufficiently often, or

in accordance with the rules

Delivering the judgment, the Deputy President of the Supreme Court, Lady Hale, said: ‘It plainly is not “at regular intervals” as this would mean attendance at school once a week is regular even though attendance every day is required by the rules.’

‘Sufficiently frequently’ was the meaning assumed by the lower courts, however, Lady Hale maintained there were many reasons to think that this was not what Parliament intended when implementing the 1996 Act.

These included:

• school attendance is compulsory and there are rules about when it is required

• the exception for absence for religious observance would not be needed unless it would otherwise amount to a failure to attend regularly

• ‘sufficiently regularly’ is far too uncertain to found a criminal offence

• it permits an approach to rule keeping which no educational system can be expected to find acceptable

Lady Hale added that there were also sound policy reasons for rejecting the ‘sufficiently regularly’ interpretation ‘because of the disruptive impact of the absence on the education of the individual child and of the other pupils’ she said.

The Supreme Court concluded these reasons point towards the correct interpretation of ‘regularly’ being ‘in accordance with the rules’. It determined such an interpretation is consistent with the obligation on parents to cause their child to receive ‘full-time’ education under EA 1996, s 7.

The case has been returned to the magistrates’ court, with a direction to proceed as if Mr Platt’s submission of no case to answer had been rejected.

Interpretation could lead to more prosecutions

Match Solicitors associate solicitor Chris Barnett believes the Supreme Court’s interpretation will inevitably lead to more prosecutions, ‘given that there will be less scope, indeed almost no scope, for arguments about whether a child had attended regularly’.

Barnett notes that the Supreme Court recognised its interpretation would mean a minor or trivial breach of the law could result in criminal liability. The Court therefore called for a ‘sensible prosecution policy’ which would involve the use of penalty notices, as well as magistrates Courts imposing the minimum penalties—even an absolute discharge, if prosecutions are still brought.

‘Business as usual’

Graham Burns and Thomas Johnson from Stone King LLP have said for schools enforcing the fines, and for local authorities bringing criminal proceedings, the decision means:

clarity is provided on the interpretation and lets everyone know where they stand

if authorised to do so by the governing body, the head teacher can grant leave—but if the absence is unauthorised, an offence will be committed

fairness to obedient parents, for example, the mother in this case had previously paid a fine for taking the child out of school in breach of the rules

Graham Burns adds: ‘On the face of it, it is business as usual. An unauthorised absence is a criminal offence which will result in a fine and, if unpaid, an appearance before the magistrates.’

Guidance needs to be immediately updated

The Local Government Association has said that while the ruling by the Supreme Court provides clarity, it is important that the Department for Education works with schools and councils to avoid any further doubt about the law. Children and Young People Board chair Richard Watts maintains: ‘What is needed is certainty for parents, teachers and councils, so that head teachers have the confidence to approve or reject requests for term-time leave in the best interests of pupils.’

Watts adds: ‘The guidance provided to schools needs to be urgently updated to reflect the judgement. I will be seeking an urgent meeting with the Department to ensure further clarity is provided for all involved.’

Modern court for modern times

Maria Scotland barrister from 5 St Andrew’s Hill argues that the judgement shows the Supreme Court are a modern court for modern times. Scotland said: ‘Lady Hale and her brother judges have served us well by ensuring that in our modern world the child's welfare is served by focusing on education before trips abroad.'

Scotland adds: ‘It should be remembered too, where cries of ‘nanny state’ are heard that it is still at the discretion of the school to sanction legitimate absences from school and even if a parent feels holiday is of greater import, a penalty notice is not a criminal offence but a charge.’